Civ Pro: Learning About Case Flashcards
Service of Process
Must give notice to D. Deliver to D: (1) summons (formal court notice of suit and time for response) and (2) a copt of the complaint. Entire document is called PROCESS.
Who Serves Process?
Any nonparty who is at least 18 years old
How is Process Served?
- Personal Service– anywhere
- Substituted Service. Process is left with someone else in D’s usual abode; and serve someone of suitable age and discretion who resides there.
- Service on D’s Agent
- State law
- Waiver by Mail
Waiver by Mail
Mail to D a copy of the complaint and two copies of a waiver form with a prepaid means of returning the form. If D executes and mails waiver form to P within 30 days, D waives formal service. If fails to return waiver without good reason–then he pays for service.
Other documents
Serve by delivering or mailing the document to the party’s attorney or pro se party. If mailed, add three days for any required response. Can email too if consent.
Pleadings: Rule 11
Applies to all documents except discovery. When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
(i) The paper is not for improper purpose
(ii) legal contentions are warranted by Law, and
(iii) the factual contentions and denials of factual contentions have evidentiary support
* continued certification
Pleadings: Rule 11 Sanctions
Sanctions may be ordered against the attorney, firm, or party.
Court must give chance to be heard. Sanctions are supposed to deter. Can be non-monetary– if monetary then paid to court.
If other party violates Rule 11 can you move for sanctions now?
NO. you serve the motion on other parties but CANNOT file it. Party in violation has a safe harbor of 21 days to fix problem. If she does not do so, THEN motion can be filed.
Can court raise rule 11 problems on its own?
Yes. Court usually issues an “order to show cause” why sanctions should not be imposed. Court must give a chance to be heard before imposing sanction.
Pleadings: Complaint
Filing commences an action
Requirements:
1. Statement of grounds of SMJ
2. Short and plain statement of the claim, showing entitled to relief;
3. Demand for relief sought.
Must plead facts supporting a plausible claim.
Pleadings: What three matters must be pleaded with even more detail–with particularity or specificity?
Complaints involving fraud, mistake, and special damages.
*Special damages are those that do not normally flow from an event.
Pleadings: D’s Response- Rule 12
Rule 12 requires D to respond in one of two ways:
1) by motion or
2) by answer
Within 21 days after service of process.
*if you waived service, you get 60 days from when P mailed you the waiver form.
D’s Response: Motions
Still Rule 12–> Motions are not pleadings, they are requests for a court order.
D’s Response: Motions - Issues of Form
(1) Motion for more definite statement
(2) Motion to strike
D’s Response: RULE 12(b) Defenses
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper Venue
(4) Insufficiency of Process
(5) Insufficient Service of Process
(6) Failure to State a Claim
(7) Failure to Join Indispensable Party
* these can be put in either motion or answer
Which one of the 12(b) defenses are waivable?
(2) Lack of PJ
(3) Improper Venue
(4) Insufficiency of Process
(5) Insufficient Service of Process
* Must be put in FIRST Rule 12 RESPONSE or else WAIVED.
D’s Response: The Answer
It IS a Pleading. Serve it within 21 days after served with process.
(I) Respond to allegations of complaint: (1)admit; (2)deny; (3)state you don’t have enough info to admit or deny.
(II)Raise Affirmative Defenses.
Pleadings: Counterclaim
This is a claim against an opposing party. Part of D’s answer. Two types:
(1) Compulsory: arises from the same T/O as P’s claim. Unless you have already filed the claim in another case YOU MUST FILE THIS IN THE PENDING CASEOR THE CLAIM IS WAIVED.
(2) Permissive: Does NOT arise from same T/O. You may file it in your answer or assert in separate case.
* *If counterclaim is procedurally ok, then assess whether it invokes diversity or FQ–if not then try SJ.
Pleadings: Crossclaim
Claim against a co-party. It MUST arise from same T/O as the underlying action. Crossclaim is permissive–you don’t have to file it in this case.
**Once you file a counterclaim or cross claim (or any claim) you can join any other claim to it. But that other claim MUST invoke SMJ.
Pleadings: Amending Pleadings
Four Fact Pattern
- Right to amend: P has right to amend once within 21 days after D serves rule 12 response. D has right to amend once within 21 days of serving his answer
- IF theres no right to amend, seek leave of court, it will be granted if justice so requires.
- Variance. Where evidence at trial doesn’t match pleadings–can amend complaint to conform to evidence (only if there was no objection during trial).
- Amendment after the SoL has run (Relation back)–can do so if they concern same conduct, or T/O as original pleading.
Discovery: Required Disclosures
MUST be produced even if no one asks.
- Initial Disclosures: within 14 days of rule 26(f)conference: persons, ESI, and documents that are likely to have discoverable info. computation of damages(P) and insurance(D).
- Experts
- Pretrial. Detailed info about trial evidence and witnesses.
Discovery: Discovery Tools
MAY NOT be used until after Rule 26(f)conference unless Court order or stipulation allows.
Discovery: Depositions
Sworn oral answers. Can depose nonparties or parties (nonparties should be subpoenaed). Cannot take more than 10 or depose same person twice.
Discovery: Interrogatories
Questions in writing to ANOTHER PARTY (NEVER TO NONPARTY).
Under oath–must respond within 30 days.
Discovery: Requests to Produce
Requests to ANOTHER PARTY (or to NONparty if accompanied with subpoena) to make available for review and copying documents or things. Must respond within 30 days
Discovery: Physical or Mental Examination
ONLY available through court order.
Discovery: Request for Admission
A request by one Party to another party to admit the truth of any discoverable matters.
*Failure to deny is an admission–amend if failure not in bad faith.
Discovery: Signature on Substantive Answers
Parties sign substantive answer to discovery under oath. Every discovery request and response is signed by counsel certifying (1)it is warranted, (2) it is not interposed for improper purpose, and (3) it is not unduly burdensome.
Discovery: Duty to Supplement
If something changes, you MUST supplement your response.
Scope of Discovery
- Standard: Anything relevant to claim or defense
- CANNOT discover communications protected by privilege
- Work Product: generally protected from discovery (mental impressions, opinions, conclusions and legal theories –absolutely protected)
BUT things like witness statements can be discoverable if party can show substantial need and not otherwise available.
Scope of Discovery: Claiming Privilege or Work Product
If you withhold discovery or seek a protective order based on privilege you MUST claim the protection EXPRESSLY and describe the materials in detail. put in privilege log
Enforcement of Discovery Rules
- Protect Order–sought from court
- Partial Response: partial violation light sanction
- No Response: total violation – heavy sanction
Enforcement of Discovery Rules: Sanctions
Party seeking sanctions must certify to court that she tried in good faith to get the info without court involvement
- partial response: (i)order compelling party; (ii) RAMBO
- No response: RAMBO + Costs
Enforcement of Discovery Rules: RAMBO
(i) Establishment Order (establishes facts as true)
(ii) Strike Pleadings of disobedient party
(iii) Disallow evidence from disobedient party
(iv) Dismiss P’s case
(v) Enter default judgment against D
